Cite as U.S. v. Syverson, 90 F.3d 227 (7th Cir. 1996)
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
GILBERT R. SYVERSON, Defendant-Appellant.
No. 94-3755
United States Court of Appeals For the Seventh Circuit
Appeal from the United States District Court for the Eastern
District of Wisconsin. No. 94 CR 69--Thomas J. Curran, Judge.
ARGUED NOVEMBER 3, 1995--DECIDED JULY 19, 1996
Before CUMMINGS, CUDAHY, and KANNE, Circuit Judges.
CUDAHY, Circuit Judge. This case principally involves
questions about what is required to prove mens rea for violations
of certain federal criminal statutes that regulate the possession
of firearms, specifically machine guns and silencers. The
government alleged that Gilbert Syverson violated these statutes by
knowingly possessing several questionable items: a metal cylinder
that could slightly diminish the report of a pistol, a variety of
unassembled gun parts, a couple of semi-automatic rifles and
instructions for using the parts to convert a semi-automatic rifle
into a machine gun. Syverson admits possession of the items, but he
contends that the government should have proven more than it did
prove about his mental state with respect to them. He also argues
that his trial counsel was unconstitutionally ineffective for not
more actively advocating this view of the evidence regarding his
mental state. For the reasons set forth below, we affirm the
judgment of the district court.
I.
Syverson's trouble began when he made some harassing phone
calls to his former girlfriend. She complained about these calls to
the police who went to Syverson's apartment to investigate. Their
investigation persuaded them to take Syverson into custody. While
preparing to leave with the officers, Syverson rifled through his
belongings in search of his keys. As he did so, the police noticed
some gun parts. After this discovery, they searched Syverson's
apartment with his consent, uncovering semi-automatic weapons, more
gun components and videotapes that illustrated a method for using
those gun components to convert a semi-automatic weapon into a
machine gun. They also found a .22 caliber pistol with a homemade
metal cylinder attached to the end of the barrel. The cylinder was
not identified by any serial number, nor was it registered. After
conducting some tests on the cylinder, government officials
concluded that it was a silencer.
These discoveries led the government to charge Syverson with
violating federal firearms law. Specifically the government alleged
that Syverson had violated 18 U.S.C. sec. 922(o), which provides
that it is unlawful for any person to knowingly possess machine
guns or their constituent parts, whether or not those parts are
assembled. See United States v. Ross, 40 F.3d 144, 146 (7th Cir.
1994) (defining the mens rea element for sec. 922(o)). The
government also alleged that, by possessing the homemade silencer,
Syverson had violated several statutes, namely 26 U.S.C. secs.
5841, 5845(a), 5861(d), 5861(i) and 5871, which make it illegal to
possess a silencer that does not have a serial number and has not
been registered in the National Firearms Registration and Transfer
Record.
At trial, the government introduced evidence designed to prove
that Syverson had possessed semi-automatic weapons, the gun
components and the metal cylinder; and it showed the videotape that
demonstrated the method for turning the semi-automatic weapons into
machine guns. It also introduced evidence showing that Syverson had
knowingly possessed the cylinder and that it could be used to
reduce the report of a pistol from 151 decibels to 144.5.
Syverson's case consisted largely of his own testimony, in
which he denied that he intended to assemble the parts into a
machine gun or that he knew that the cylinder worked as a silencer.
He asserted that he had, at one time, thought about making a
machine gun; but he claimed that he had given up the idea when he
learned from the Bureau of Alcohol, Tobacco and Firearms that such
a project would be illegal. One witness corroborated this testimony
by recalling an earlier conversation in which Syverson had
reflected this state of mind. Syverson also testified that he had
designed and made the cylinder himself, as a prototype for a muzzle
break, [sic] a device that reduces the recoil of a rifle. Another
witness testified, in effect, that the cylinder was not a silencer
because a person with average hearing could not hear the reduction
in sound that it effected.
The district court instructed the jury as to the elements of
the offenses regarding the machine gun and the silencer. The jury
convicted Syverson on all five counts.
II.
Syverson challenges his convictions on the machine gun charges
by arguing that the government did not have sufficient evidence to
prove that he had a culpable mental state. Specifically, he
contends that the elements of sec. 922(o), as defined in the
statute itself and in the jury instructions, required the
government to prove that he intended to use the unassembled gun
parts to convert his semi-automatic weapons into machine guns. And
he maintains that the government did not introduce evidence on this
point.
In ordinary circumstances, appellants face formidable
obstacles in showing that a judgment against them is invalid for
want of sufficient evidence. United States v. Hickok, 77 F.3d 992,
1002 (7th Cir.), cert. denied, 116 S. Ct. 1701 (1996). In this
case, Syverson faces even greater obstacles because his trial
counsel failed to move for an acquittal at any of the appropriate
times for such a motion. Consequently, he is deemed to have waived
any appellate arguments about the sufficiency of the evidence. This
waiver lowers our standard of review to plain error with respect to
this issue. Syverson must show that the evidence supporting his
conviction was so insufficient that his convictions amounted to a
manifest miscarriage of justice. See United States v. Archambault,
62 F.3d 995, 998 (7th Cir. 1995).
According to 18 U.S.C. sec. 921(a)(23), the meaning of the
term "machine gun" in sec. 922(o) comes from 26 U.S.C. sec.
5845(b). Section 5845(b) defines "machine gun" as a completely
assembled gun that fires automatically or as a combination of parts
that are "designed and intended[ ] for use in converting a weapon
into a machine gun."
As the government and the district court have read this
combination of statutes, the government could prove that Syverson
violated sec. 922(o) by showing: that he knowingly possessed a
"combination of parts," that the manufacturer of those parts had
designed and intended them for use in converting a weapon into a
machine gun and that he knew of this use for the parts. See Ross,
40 F.3d at 146. Syverson does not dispute that the government
introduced sufficient evidence to prove these three elements.
But Syverson's interpretation of the relevant statutes leads
him to argue that the government must prove a fourth element: that
he intended to use the parts to make a machine gun. He does not
complain that the jury instructions failed to inform the jury about
this requirement; he seems to believe that the instructions as
given were adequate and that they were misunderstood or misapplied.
In his view, when the statute refers to parts that are "designed
and intended" to convert a weapon into a machine gun, the phrase,
"designed and intended," cannot refer solely to the manufacturer's
conception of the parts. He believes that, if the phrase did, the
words "designed" and "intended" would have essentially the same
meaning and would therefore be redundant. Syverson thus argues that
the two words in the phrase must each refer to different things,
relying on the well-established principle that statutory
construction abhors a redundancy. See Welsh v. Boy Scouts of
America, 993 F.2d 1267, 1272 (7th Cir.), cert. denied, 114 S. Ct.
602 (1993). He maintains that "designed" refers to the
manufacturer's conception of the parts and that "intended" refers
to the defendant's thoughts about the parts.
After examining the context for the language that defines
"machine gun," we must reject Syverson's interpretation of the
statute. As we noted, the language upon which Syverson focuses
comes from 26 U.S.C. sec. 5845(b). This section defines "machine
gun" for the purposes of statutes that regulate the possession and
use of weapons. This definition has evolved over time. Originally,
"machine gun" referred only to fully assembled machine guns. In
1968, the Gun Control Act expanded the definition to include "any
combination of parts from which a machine gun can be assembled."
Finally, in 1986, Congress reconized that so-called "machine gun
conversion kits" posed a threat to the effective enforcement of the
regulation of machine guns. These kits permitted individuals to
convert a semi-automatic rifle into a machine gun. Congress sought
to subject these conversion kits to the regulations on machine guns
by adding to the definition of machine gun in sec. 5845.
Consequently, Congress amended sec. 5845(b) again, providing, in
effect, that a collection of parts "designed and intended" to
convert a weapon into a machine gun was the functional equivalent
of a machine gun. Through this evolution of the statute, Congress
has sought to identify all of the things that can constitute a
machine gun. See United States v. Evans, 712 F. Supp. 1435, 1438
(D. Mont. 1989) (discussing the development of sec. 5845); see also
H. Rep. No. 945, 99th Cong., 2d Sess. 28, reprinted in 1986
U.S.C.A.A.N. 1326, 1354.
Accepting Syverson's argument would require us to hold that
sec. 5845(b) does more than define all of the things that can be
called "machine guns;" we would have to hold that it also defines
the mental states required for certain substantive offenses. As we
have seen from its evolution, however, sec. 5845(b) has nothing to
do with defining culpable mental states. Its sole purpose is to
define things. Therefore, within the context of sec. 5845(b), the
only referent for the adjectives "designed and intended" is the
manufacturer of the parts, not the accused who is charged with the
unlawful use of those parts. When sec. 922(o) interpolates the term
"machine gun" from sec. 5845(b), it cannot change the referents for
the phrase "designed and intended." To do so would be to change the
meaning of "machine gun," and the statutory scheme of which sec.
922(o) is a part does not permit such a change. According to the
plain language of sec. 921(a)(23), sec. 922(o) does not give
meaning to "machine gun;" it borrows the meaning for that term from
sec. 5845(b). Therefore, Syverson's reading of the statutes is
untenable.
We should note that, in any event, the trial record does
contain circumstantial evidence showing his intentions with respect
to the conversion kit. By showing that Syverson knowingly possessed
semi-automatic rifles, that he knowingly possessed a conversion kit
and that he knowingly possessed instructions for converting the
rifles into machine guns, the government has made a substantial
showing about Syverson's intention to make a machine gun. A jury
could certainly infer that Syverson possessed all of these things
because he intended to use them for an illegal purpose; and
Syverson's own denials of this intention do not necessarily make
this inference unreasonable. The reasonableness of this inference
only makes it more obvious that there was no miscarriage of justice
with regard to the sufficiency of the evidence on the machine gun
counts.
III.
Syverson makes two related challenges to his convictions on
the counts pertaining to his possession of a silencer. He first
argues that the district court's jury instructions did not properly
identify the elements of these offenses; and he argues that the
evidence relating to these offenses was insufficient to convict him
even if the elements were not as he had argued.
A.
The government charged Syverson with two offenses arising from
his possession of the cylinder. First, it alleged that he violated
26 U.S.C. secs. 5841, 5845(a), 5861(d) and 5871, which prohibit the
possession of an unregistered firearm. Second, it alleged that he
violated 26 U.S.C. secs. 5861(i) and 5871, which make it unlawful
for any person to possess a firearm that does not have a serial
number. According to 18 U.S.C. sec. 921(a)(3), a silencer is
included in the definition of a firearm; and, under 18 U.S.C. sec.
921(a)(24), a silencer is "any device for silencing, muffling, or
diminishing the report of a portable firearm, including any com-
bination of parts, designed and intended for use in assembling or
fabricating a firearm silencer . . . and any part intended only for
use in such assembly or fabrication." In instructing the jury, the
district court employed an abbreviated version of the definition of
"silencer" in sec. 921(a)(24), noting that a silencer is "any
device for silencing, muffling, or diminishing the report of a
portable firearm."
As he did with the machine gun charge, Syverson argues that
the government should have been required to prove more than it did
prove. Syverson derives this argument from Staples v. United
States, 114 S. Ct. 1793 (1994), in which the Supreme Court
discussed the mens rea requirements of sec. 5861(d), one of the
statutes under which he was charged. That statute does not
explicitly provide a mens rea requirement for any of the crimes
that it defines, but the Supreme Court held that it did not there-
by create strict liability crimes. In Staples, the Court in-
terpolated knowledge as the mens rea requirement. Id. at 1804. It
held that the government could obtain convictions under sec.
5861(d) by proving that the defendant knew of the features of the
firearm that brought it within the regulation of the statute. Id.
Syverson contends that Staples applies to both sec. 5861(d)
and sec. 5861(i) and that it requires the government to prove that
he knew that the cylinder actually reduced the report of a gun.
This argument depends upon the premise that sec. 921(a)(24)
provides that "silencing, muffling or diminishing" is one of the
features of silencers. In other words, Syverson presumes that sec.
921(a)(24) only regulates silencers that actually work.
This presumption is, however, contrary to the plain language
of the statute. Syverson correctly points out that Staples controls
the definition of the elements of the offenses in this case. Under
Staples, the government can prove that a defendant knowingly
possessed a silencer by proving that the defendant knowingly
possessed an item and that he knew that the item had the features
of a silencer. But Syverson incorrectly identifies the salient
features of silencers. As noted above, the statute defines a
silencer as "any device for silencing, muffling, or diminishing"
the report of a firearm. Moreover, the statutory text notes that
such a device can include a combination of parts designed or
intended for use in assembling a silencer; it can even include a
single part that is intended only for use in making a silencer.
Thus, the statute does not limit the definition of a silencer to "a
device that silences, muffles, or diminishes." This is a
significant difference. By the language of the definition, Congress
has indicated that it intends to regulate all devices purporting to
serve as silencers, not just those devices that actually work to
silence firearms. Therefore, a device can be a silencer for the
purposes of sec. 921(a)(24) even if it does not actually silence.
Consequently, Syverson is mistaken in arguing that Staples
required the government to prove that his cylinder actually muffled
the report of a gun and that he knew that the cylinder had this
effect. Under Staples, the government had to prove that the
cylinder was made for the purpose of silencing a firearm, not that
this purpose was realized. The definition of "silencer" in the
district court's jury instructions adequately conveyed this
requirement.
B.
Regardless of the preceding argument, Syverson accepts the
fact that the government had to prove that his cylinder purported
to be a silencer. He argues that he should not have been convicted
because the record contained no evidence that would make this
proof. As we have noted, we will consider this argument according
to the plain error standard because Syverson did not move for an
acquittal during the trial.
Because Syverson was the designer and manufacturer of the
cylinder, his intentions determine whether it purported to be a
silencer. In his trial testimony, Syverson professed his
intentions, insisting that he had designed and manufactured the
cylinder to be a muzzle break. A muzzle break is a device that
reduces the recoil of a gun by permitting the dispersion of the hot
gasses that emerge from the end of the gun barrel when a round is
fired and force the barrel upward. He explained that his daughter
had wanted a muzzle break so that she could more accurately fire
her rifle; and he claimed that the cylinder on the pistol was a
prototype of the muzzle break that he planned to manufacture for
her. His daughter's testimony corroborated this account. In
Syverson's view this is the only evidence in the record that
reflects on his intentions. This evidence alone does not, of
course, prove that the cylinder was a device for silencing,
muffling or diminishing the report of a firearm.
Contrary to Syverson's characterization of the record, there
was evidence showing that he intended the cylinder to be a
silencer. Part of that evidence was negative, casting doubt on his
professed intentions. A government expert testified that muzzle
breaks usually have slots cut into them; these slots are the means
by which muzzle breaks disperse the hot gases expelled from a gun
barrel. Syverson's cylinder had no slots. According to this
expert's testimony, Syverson's cylinder would not have done much,
if anything, to reduce the recoil of a firearm. In addition, the
government offered evidence that the cylinder did reduce the report
of a pistol, albeit slightly. This evidence would be enough to
allow a reasonable jury to infer that Syverson's description of the
cylinder was not credible and that it was made to be a silencer,
even if it was not particularly well made. This was more than
enough evidence to support Syverson's conviction.
IV.
Syverson's final challenge to his conviction depends upon his
claim that he received ineffective assistance of counsel at trial.
He raises this argument for the first time on appeal. Ordinarily,
we will not take jurisdiction of a claim of ineffective assistance
unless the appellant has, as is usually not the case, raised the
issue at trial. United States v. Langer, 962 F.2d 592, 597 (7th
Cir. 1992). We can, however, take jurisdiction of such claims when
they rest on the trial record alone and when the defendant's
attorney on appeal is not the same person who represented him at
trial. United States v. Boyles, 57 F.3d 535, 550 (7th Cir. 1995).
Syverson's claim meets these conditions.
The Supreme Court has held that a defendant may sustain a
claim of ineffective assistance of counsel by showing that his or
her counsel's performance was deficient and that this deficient
performance prejudiced his or her case. Strickland v. Washington,
466 U.S. 668, 687 (1984). Syverson finds deficient performance in
his trial counsel's failure to move for a judgment of acquittal
based on the sufficiency of the evidence arguments he makes on
appeal. As Syverson sees it, criminal defendants have nothing to
lose and everything to gain by moving for a judgment of acquittal.
Given the relative costs and benefits of such a motion, he believes
that every competent defense lawyer would always make such a motion
and that his trial counsel's failure to do so is the sign of
incompetence, and therefore, deficient performance. His argument
with respect to the prejudice element is very sketchy. It consists
entirely of the assertion that this deficient performance
prejudiced him because it led to an outcome for his trial that
violates principles of fairness and justice.
Putting aside any question about whether Syverson's trial
counsel performed deficiently, we conclude that Syverson did not
suffer any prejudice from counsel's failure to move for an
acquittal. Because the evidence against Syverson was sufficient to
warrant his conviction, no prejudice could arise from trial
counsel's failure to challenge the sufficiency of that evidence
through a motion for acquittal. See United States v. Pedigo, 12
F.3d 618, 623 (7th Cir. 1993).
The judgment of the district court is AFFIRMED.